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Abstract:
This article evaluates American fetal homicide laws in the light of John Rawls's political philosophy. In particular, it seeks to discern whether fetal homicide indicates a societal recognition of fetal personhood, and, if so, whether such recognition renders the right to abortion inconsistent with our principles of justice.

The article proceeds in three parts. The first part outlines the contours of the bifurcated fetal-rights scheme and demonstrates that it is an established societal judgment with robust institutional support. The middle part introduces Rawls's philosophy, and explains how it can, under certain circumstances, provide us with insight into the stability of public policies. The final part, which constitutes the core of the article, uses Rawls's philosophical model to gauge the stability of the bifurcated fetal-rights scheme. Specifically, it demonstrates that, in a Rawlsian society, the emergence of fetal-homicide laws necessarily reflects a public understanding that fetuses are represented at the "original position." This part then goes on to evaluate the circumstances in which the current fetal-rights scheme - a blend of fetal-homicide laws and abortion rights - could be affirmed by a Rawlsian. The article concludes by briefly speculating about how Rawls's philosophy might impact our views on fetal rights in the coming decades.

Homicide, Fetal Personhood, John Rawls

Abstract:
This Article posits that there are two distinct lenses through which one can view the exclusionary rule. The first approach, set forth by Justice Holmes in 1920, analyzes the government's sources for evidence rather than the challenged evidence itself. An alternative to Holmes's approach is to focus on the challenged evidence instead of its underlying sources. In this Article I argue that the exclusionary rule is, and should continue to be, governed by the source-centric framework.

The first half of this Article demonstrates that Holmes's source-centric framework is grounded in Supreme Court precedent, that it is sufficiently adaptable, and that it is, as a matter of social and legal policy, preferable to the evidence-centric framework. The Article's second half identifies and analyzes an emerging problem within criminal procedure: the abandonment of the source-centric framework in the name of deterring police misconduct. Along these lines, I pay especially close attention to Judge Richard Posner's "evidence-centric" opinion in United States v. Johnson. In conclusion, this Article offers a solution, explaining in clear terms how future courts can counter underdeterrence all the while remaining true to Holmes's source-centric vision of the exclusionary rule.

Exclusionary Rule, Independent-Source Doctrine, Standing

Abstract:
The presidencies of William J. Clinton and George W. Bush are in many ways kindred. It seems certain that both will be noted by historians for their determined and mechanistic evasions of public scrutiny. The misleading insinuations, failed memories, perjuries, obstructions of justice, and novel assertions of executive privilege have been exposed sharply and criticized roundly by Congress, academics, and the press.

Still, there is a particular tactic of presidential evasion, utilized by Clinton and Bush alike, that has been left undisturbed. This is the White House's increasingly regular practice of claiming that the President and his advisors are "constrained" from publicly commenting on particular matters due to the existence of an "ongoing criminal investigation." In many minds, the invocation of this constraint, no matter the circumstances, reflexively transforms a White House stonewall into an instance of responsible and principled presidential restraint.

This Article examines the "ongoing criminal investigation" constraint, and argues that its scope is limited and discernible. The constraint does not, for instance, extend to investigations (1) over which the President lacks control; and (2) which suggest that he or his associates committed improprieties. The practical impact of this conclusion is that Presidents are never externally constrained from publicly commenting on matters pursued by Special Counsels, which, by their very nature, are independent of the White House's control, and concern allegations of high-level executive branch malfeasance.

Criminal Procedure, Prosecutorial Discretion, Faithful Execution Clause

Abstract:
This Article contrasts the various approaches taken by the federal courts to evaluate the Fourth Amendment rights of trespassers. Part I reviews the applicable Supreme Court precedent binding lower courts in Fourth Amendment trespass cases, namely the Katz analytical model and the Court's authorized-visitor opinions. Part II documents the two competing theories of Fourth Amendment rights of trespassers, with particular emphasis placed upon the ambiguous reasoning in the opinions recognizing trespasser rights. Part III develops the potential justifications for these holdings, systematically analyzes the plausibility of each justification, and argues that each justification is substantially underinclusive, speculative, or offensive to modern legal doctrines.

Fourth Amendment, Search and Seizure, Standing

Abstract:
The prevailing approach to First Amendment equal-access litigation, turning on the "general inclusivity" of government access, is deeply flawed. The standard has proved to be, in the end, exceedingly permissive, hopelessly vague, and, perhaps most importantly, theoretically incompatible with the Supreme Court's emerging view that access is a form of government subsidy. This essay calls on the courts to abandon their reliance on inclusiveness, and, in its place, tailor the definition of "access" to include only those government acts conducted "pursuant to official duties." The resulting doctrine would be one worthy of the federal courts -- durable, coherent, and duly respectful of the traditional relations between public officials and the press.

Abstract:
The institutionalist branch of “Law and Courts” studies how judges incorporate institutional constraints into their decisionmaking processes. Congressional constraints on judicial review, as the literature currently stands, fall into one of two general classes: overrides and Court-curbing measures. This taxonomy, however, is incomplete. Neither overrides nor curbing measures are needed to explain the not uncommon situation where a policy-oriented Justice deviates from a preferred vote based on the belief that such a vote will prompt Congress to alter an “insulated base rule” in a way that disrupts the Justice's larger policy agenda. An “insulated base rule” is a Congressional policy decision that cannot, as a legal or practical matter, be modified by the Court. (Examples include Congressional decisions to appropriate funds, to enact certain types of mitigating legislation, or to orient legislation in particular constitutional clauses.) A Justice’s consideration of this third constraint (i.e., how a vote will affect a particular “insulated base rule”) is a process I call “stacking.” Leaving more sophisticated theoretical models and large-scale empirical studies for a later time, this paper illustrates adjudicative “stacking” through close study of the Supreme Court’s recent opinions in Virginia v. Moore.

Jurisprudence, Fourth Amendment, Virginia v. Moore